Dr. Arijit Pasayat, J.— Leave granted.
2. Challenge in this appeal is to the judgment rendered by a Division Bench of the Rajasthan High Court upholding the conviction of the appellant for the offence punishable under Section 302 of the Penal Code, 1860 (in short “IPC”) and sentence of imprisonment for life as awarded by the learned Additional Sessions Judge No. 1, Jodhpur.
3. Background facts in a nutshell are as follows:
Report was lodged by one Tulsh Singh at Tolesar Police Station stating that on 19-11-1999 he was standing on the road along with Swai Singh, Sumer Singh (hereinafter referred to as “the deceased”) and Vijay Singh. Around 4 p.m Laxman Singh who was then studying in a nearby school came and informed that while the children were talking amongst each other, appellant Ram Swaroop slapped him. At that time Ram Swaroop and Shrawan were standing on the road. When Sumer Singh asked Ram Swaroop as to why he had beaten Laxman, on this Shrawan started beating Sumer Singh and the complainant tried to separate them. In the meantime the appellant with the intention to kill stabbed Sumer Singh with a knife. Sumer Singh received two stab injuries on his chest and one stab injury from knife on his back and he started bleeding and fell down. While the complainant and others were attending to Sumer Singh, Shrawan and the appellant-accused Ram Swaroop ran way. Sumer Singh's elder brother Kumbh Singh arrived there. Sumer Singh in an injured condition was taken to Gandhi Hospital at Jodhpur, but he died on the way to the hospital. On the basis of this information, the FIR was lodged and investigation was undertaken. Charge-sheet was filed alleging commission of offence punishable under Section 302 IPC by the appellant-accused, while co-accused Shrawan Ram was charged for the offence punishable under Section 302 read with Section 34 IPC.
4. The matter was committed to the Court of Session and the two accused persons faced the trial as they pleaded innocence and denied the allegation. In order to further its version, the prosecution examined 14 witnesses. Tulsh Singh, PW 3 and Swai Singh, PW 4 were stated to be eyewitnesses. The trial court on considering the evidence on record found the appellant-accused guilty and convicted and sentenced the appellant-accused for offence punishable under Section 302 IPC. The trial court found the evidence to be not sufficient to fasten the guilt on accused Shrawan Ram.
5. The High Court did not find any merit in the appeal of the appellant-accused and dismissed the same.
6. In support of the appeal, learned counsel for the appellant submitted that the trial court and the High Court lost sight of the fact that PWs 3 and 4 have not spoken the truth. The scenario described by them does not fit in with the prosecution version. It is pointed out that the manner of attack and infliction of injuries as stated by PWs 3 and 4 do not fit into the medical evidence.
7. Learned counsel for the respondent State on the other hand supported the judgment of the trial court as affirmed by the High Court.
8. “17. So far as the alleged variance between medical evidence and ocular evidence is concerned, it is trite law that oral evidence has to get primacy and medical evidence is basically opinionative. It is only when the medical evidence specifically rules out the injury as is claimed to have been inflicted as per the oral testimony, then only in a given case the court has to draw adverse inference.
18. … Overdependence on such opinion evidence, even if the witness is an expert in the field, to checkmate the direct testimony given by an eyewitness is not a safe modus adoptable in criminal cases. It has now become axiomatic that medical evidence can be used to repel the testimony of eyewitnesses only if it is so conclusive as to rule out even the possibility of the eyewitness version to be true. A doctor usually confronted with such questions regarding different possibilities or probabilities of causing those injuries or post-mortem features which he noticed in the medical report may express his views one way or the other depending upon the manner the question was asked. But the answers given by the witness to such questions need not become the last word on such possibilities. After all, he gives only his opinion regarding such questions. But to discard the testimony of an eyewitness simply on the strength of such opinion expressed by the medical witness is not conducive to the administration of criminal justice.”
Similar view has also been expressed in Mange v. State Of Haryana . (1979) 4 SCC 349, State of U.P v. Krishna Gopal (1988) 4 SCC 302, AIR 1988 SC 2154, Ram Dev v. State of U.P 1995 Supp (1) SCC 547 (2), State of U.P v. Harban Sahai (1998) 6 SCC 50 and Ramanand Yadav v. Prabhu Nath Jha (2003) 12 SCC 606
9. The trial court and the High Court have analysed in great detail the evidence of PWs 3 and 4 which clearly brings out the accusations against the appellant-accused. There are certain minor variations which do not in any way corrode the credibility of the prosecution version. The trial court and the High Court were, therefore, justified in placing reliance on their evidence and holding the appellant-accused guilty. We do not find any merit in the appeal which is accordingly dismissed.
10. We record our appreciation for the able manner in which Mr Radhashyam Jena, learned amicus curiae highlighted various points.
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